West, Oliver & Co. v. Ball

12 Ala. 340 | Ala. | 1847

COLLIER, C. J.

In Gullett v. Lewis, 3 Stew. Rep. 23, it was said, that an attorney at law is the agent of his client, and when a note is placed in his hands to collect, the only power granted to him is to receive the money, if the debtor will' pay it, or to enforce its payment by suit; and consequently he has no right to dispose of the demand in payment of his own debt, or to accept any thing in discharge of the liability but cash. [See also Cook & Lamkin v. Bloodgood, use, &c. 7 Ala. Rep, 683.] . It has been decided, that, a paper medium of currency is not money. [Lange v. Kohne, 1 McCord’s Rep. 115.] And if an attorney collect bank bills in lieu of specie, without authority, he is responsible as for a failure to collect. [Wickliffe v. Davis, 2 J. J. Marsh. Rep. 69.] As to the description of funds which a sheriff should receive on & fieri facias, or by which a judgment may be satisfied, see Catlett v. Alexander, 4 How. Rep. (Miss.) 404; Morton v. Walker, 7 Id. 554; Gasquet v. Warren, 2 S. & Mar. Rep. 514; Wood v. Robinson, 3 Id. 271; Lehr v. Rogers, Id. 468; Anketel v. Torrey, 7 Id. 467; Tutt v. Fulgham, 6 How. Rep. (Miss.) 621; Anderson v. Carlisle, 7 Id. 408; Havener v. Kerr, 1 South. Rep. 58; Cox v. State Bank, 3 Hals. Rep. 172; Hallowell, &c. Bank, 13 Mass. Rep. 235; Anderson v. Hawkins, 3 Hawks’ Rep. 568; Moody v. Mahurin, 4 N. Hamp. Rep. 296; Goodenow v. Duffield, Wright’s Rep. 457; Adkins v. Blake, 2 J. J. Marsh. Rep. 40; Sinclair v. Piercy, 5 Id. 64; Bobo and Johnson v. Thompson, 3 Stew. & P. Rep. 385; Haynes v. Wheat & Fennell, 9 Ala. Rep. 239.]

We think it clear that an attorney at law, in virtue of his general powers as such, has no authority to receive depreciated bank paper in payment of a debt placed in his hands for collection, and if he collects it in such funds, his client is not bound to accept it in satisfaction. The debtor cannot discharge himself by a payment in any thing else than gold and silver, without the consent of his creditor; nor does the mandate of a fieri facias require of the officer to make of the defendant’s estate any thing else than gold or silver. And if he accepts bank bills which are selling at a discount, neither himself nor the attorney of the plaintiff can compel the latter to receive them as money. These conclusions are so fully supported by the citations we have made, that they do not require illustration.

But if the law were otherwise, the instructions of the plaintiffs in their letter to Messrs. Phillips & Tarrant, and the postcript thereto, would have modified the duty of the defendants, and furnished a different rule for their guidance. It was not necessary that the agreement of Messrs. Y., D. &. Co. recited in the postcript should have been placed in the defendants’ hands, in order to charge them with notice of its contents, or to have informed them in what description of funds the plaintiffs wished the collections to be made. The instructions contained in the letter, and the recital of the agreement were quite sufficient.

In respect to usage of attorneys in Montgomery, to collect the demands of their clients in bills of the bank of this State and its branches, though selling at a depreciation, we are satisfied that it did not, under the circumstances of the present case, authorize the defendants to make a collection in such funds. It has been repeatedly decided, that the usage of no class of men can be supported in opposition to the established principles of law. [Homer v. Dorr, 10 Mass. Rep. 29, 29; Newbold v. Wright, 4 Rawle’s Rep. 195; Henry v. Risk, 1 Dall. R. 265; Stoever v. Whitman, 6 Binn. R. 417; Brown v. Jackson, 2 Wash. C. C. Rep. 24; Westfall v. Singleton, 1 Wash. Rep. 227; Prescott v. Hubbell, 1 McC. Rep. 94; Bryant v. Commonwealth Ins. Co. 6 Pick. Rep. 131; Bolton v. Colden, 1 Watts’ Rep. 360; Price v. White, 9 Ala. Rep. 563; Desha, Smith & Co. v. Holland, at this term.] In Barksdale v. Brown, 1 Nott & McC. Rep. 519, it was held, that no usage will authorize a factor or agent to depart from positive instructions. Nor will the usage of a particular business bind a party who makes a contract relating to it, unless the usage is so general as to furnish a presumption of knowledge, or it is proved that he knew it. [Wood v. Hickok, 2 Wend. Rep. 501; Stevens v. Reeves, 9 Pick. R. 198.] So it is said that a custom should not only be so ancient as to warrant the inference that it is generally known, but it should be certain, uniform, and reasonable. [Rapp v. Palmer, 3 Watts’ Rep. 178; Consequa v. Willings, Peters’ C. C. Rep. 230; Chastain v. Bowman, 1 Hill’s R. (S. C.) 270; and cases cited in Price v. White, ut supra.]

Even if it were competent to modify by usage the law which regulates the duties of attorneys at law in the collection of money, such a usage could not operate in opposition to the instructions of the client. If an attorney receives a note or other evidence of a debt to collect, with instructions as to the kind of funds to be received in payment, these instructions would, so far as they extended, constitute the contract between himself and his client, and he would be chargeable for any loss which would result from a departure from them. The agreement of Messrs. Y.,D. & Co. recited in the post-cript of the first letter shows, that the plaintiffs were not to lose more than two and a half per cent, in transmitting their funds to New York; and this agreement was not only obligatory upon Messrs. Y., D. & Co. but should have been regarded by the defendants as a direction to them. But if the plaintiffs had given no instructions on this point, was it not the duty of the defendants to have collected what the face of the note imports they had promised to pay — -a certain sum in money; and is not any custom which changes the implied undertaking of attorneys, so as to permit them to receive depreciated bank paper as an equivalent for money, unreasonable, and in opposition to law ? Besides, does it appear that the custom was known to plaintiffs, or of such ancient date that their knowledge will be presumed ? We do not deem it necessary to stop to answer these questions, for it is clear from what has been already said, that the custom relied on, cannot be supported against the plaintiffs.

We can perceive nothing in the facts from which it can be inferred, that the plaintiffs ratified the act of the defendants, in collecting their debt in bills of the Bank of the State and its Branches. As soon as they received the draft, payable in “current funds,” they addressed a letter to the defendants, in which they are informed that the plaintiffs refuse to receive it, ahd deny their right to collect such funds ; and further, that the draft had been remitted to Messrs. P. & T. who would call on them to exchange it, or add the rate of exchange on New York, &c. Mr. P. called on the defendants immediately on the receipt of the letter to Messrs. P. & T. and communicated its contents to them, which was substantially the same as that written to the defendants. After the return of the draft by Messrs. P. & T. to New York, the plaintiffs wrote to the defendants another letter of the same import as the first. It is explicitly stated that the first letter was received in the due course of mail, and it is not pretended that the second did not reach its destination.

The first letter written to the defendants was of the same date of that to Messrs. P. & T., and must have been in their hands when Mr. P. called on them. This letter, when connected with the fact, that Mr. P. informed them that he had the draft, was an offer to return the draft, or adjust the matter as the plaintiffs proposed; and the defendants’ silence was tantamount to a refusal to do any thing in the business. To show the correctness of this proposition, it is only necessary to state it.

Perhaps the proof would have been less liable to criticism if it had been shown in totidem verbis, that by “ current funds,” were meant bills of the State Bank and its Branches; but is not this fairly inferable from the fact that the collection was made in that description of funds ? However this may be, the reverse cannot be assumed, and all the defendants can claim is, that the fact should have been submitted to the jury. This was not done, but the rulings of the court foreclosed the inquiries of the jury on the point.

The remaining question then is, were the plaintiffs bound to present the draft to the Bank of Mobile for payment. We .think no such obligation rested upon them. The plaintiffs resided in N. York, and the entire transaction shows, that they there expected to realize their funds, however the remittance was made. Arter waiting upon the defendants for a reasonable time, to adjust the matter, so that they could receive their money, with a deduction of nothing more than the difference of exchange between New York and Alabama, if exchange on specie or its equivalent was in favor of the former, there was no objection to putting the draft into the market.

This view is decisive of the case, and the consequence is, that the judgment must be reversed, and the cause remanded.